More about the Biden vaccine mandate

Several weeks ago, I suggested that you stay tuned for the latest developments—that we wouldn’t know much about the Biden vaccine mandate until we had actually read any Presidential executive orders. Well, we can now read two of these:

• Presidential executive order for Federal employees
• Presidential executive order for Federal government contractor personnel

One might expect to see language that said “get vaccinated or get regularly tested.” But instead the executive orders indicate that the Safer Federal Workforce Task Force will develop guidance to require vaccinations for employees of the Federal government and Federal government contractors—with the exceptions required by law. I’m glad to see that legal exceptions are being acknowledged, but they are not specifically identified in the executive orders. The two primary exceptions are those related to disabilities and religious beliefs.

Apparently in response to these orders, the White House has issued a COVID-19 action plan.

How long before we find out what the rule will say?

Our best guess is 30 to 45 days. But news reports indicate that the Occupational Safety and Health Administration (OSHA) got only a week’s notice before President Biden made his announcement on September 9. These same reports indicate that senior management at OSHA was still in the dark about their new task until just hours before the Presidential announcement. And news reports this week are indicating that OSHA is struggling to complete its new task quickly.

Insights from a previous “vaccine mandate”

On June 21, 2021, OSHA issued an emergency temporary standard (ETS) for healthcare workers that addressed vaccinations. That standard took 5 months to develop, but it may help us predict what the new rule will look like. The ETS employed an interesting approach to vaccination of hospital employees. If all the employees of a hospital are vaccinated, one set of easier-to-follow safety protocols can be followed. But if all hospital employees are not vaccinated, a more stringent and demanding set of protocols have to be followed. Although the ETS has been described as a get-vaccinated-or-get-tested rule, it can be better described as a rule that requires either vaccination of all employees or following more stringent safety protocols.

One of the good things about this ETS, though, is that it specifically acknowledges the exceptions to the mandatory vaccine policy related to the ADA and religious beliefs.

Kinks in the OSHA regulatory scheme

Most regulatory bodies can issue an emergency regulation under the Administrative Procedure Act (APA) with the emergency rule remaining in effect until rescinded or replaced with a permanent rule. But the Occupational Safety and Health Act (OSH Act) requires OSHA to issue a permanent regulation within 6 months after issuing an ETS. It’s unclear what happens at the end of 6 months. Because OSHA has never tried to extend an ETS, no court has spoken on whether that’s legal. It’s likewise unclear what happens if a permanent rule is not issued by the end of 6 months. Presumably, the ETS expires. But can it be replaced by another “new” ETS that is announced the next day after the previous one expires? We don’t know and can’t know until it’s challenged in court.

Furthermore, the OSH Act requires that an ETS be based on a grave danger. OSHA has been unable to meet that requirement in litigating a number of previous emergency temporary standards, which the courts have therefore thrown out.

Potential constitutional challenge

Keep in mind that a statutory legal challenge (as explained in the previous section) is different from a constitutional challenge. In 1905, in the case of Jacobson v. Massachusetts, the U.S. Supreme Court upheld the constitutionality of a Massachusetts law that mandated vaccinations. The defendant asserted that the mandatory vaccination violated his Fourteenth Amendment rights, but the U.S. Supreme Court rejected that argument.

Furthermore, in a decision announced on August 2, 2021, the U.S. Seventh Circuit Court of Appeals cited Jacobson in upholding Indiana University’s mandatory vaccine policy for students. Very shortly thereafter, Justice Amy Barrett of the U.S. Supreme Court denied an appeal in this case. So a constitutional challenge to the mandatory vaccine policy is unlikely to succeed. The Indiana University policy, by the way, provided for exceptions related to the ADA and religious beliefs.

Potential challenge to the mandate for Government contractors

Although two recent Presidential executive orders for Government contractors have been challenged, both were rolled back by a succeeding President. They were attacked as exceeding the Federal government procurement authority. Because of the rollbacks, this type of legal challenge has not been answered in a definitive way.

But if I had to place a bet on the outcome of such litigation, I would bet on the executive order being upheld.

What’s the best policy to pursue in the meanwhile?

1. As an employer, don’t adopt a mandatory vaccine policy on your own without consulting with your legal counsel. Although you can legally adopt such a policy, there are numerous legal pitfalls that you will need to avoid.
2. As an employer, you can encourage employees to get vaccinated and even “reward” them for doing so. But again, it’s wise to consult with legal counsel before adopting a reward policy because there are legal pitfalls to this approach as well.

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.

© 2021